Sex Discrimination (Election Candidates) Bill

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The Parliamentary Under-Secretary of State for Transport, Local Government and the Regions (Dr. Alan Whitehead): I belatedly join hon. Members in expressing my pleasure at serving under your chairmanship, Mrs. Adams.

The central premise of the Bill is that the provisions should be permissive. It does not prescribe a certain method by which positive measures may be taken. Although our interesting debate has covered all-women shortlists, zipping and balanced panels, the Bill does not prescribe any of them. It simply seeks to ensure that parties can take positive measures, which may vary between parties. The merits of a party's actions will be judged according to what results from them.

The amendments tabled by the hon. Member for Maidenhead, especially amendments Nos. 5 and 7, probe whether a candidate's existing rights under election law not to be discriminated against, which have been established in case law, remain untouched by the Bill. The hon. Member for Cheadle (Mrs. Calton) asked whether the amendments were necessary. They are not. I can give the hon. Members for Maidenhead and for South Cambridgeshire (Mr. Lansley) the assurance that they seek. My right hon. Friend the Secretary of State said on Second Reading that, apart from the limited exemption in clauses 2 and 3, the Bill

    ``leaves untouched all the other rights established under existing case law against discrimination in any other circumstances, as it rightly should''.—[Official Report, 24 October 2001; Vol. 373, c. 330.]

In other words, the Bill does not switch off the Sex Discrimination Act 1975. All the procedures established under the Act apply, but the positive measures that the Bill permits parties to take are exempt. That is the key point.

Future case law could affect rights, but the amendments would provide no protection against such changes, because they refer to questions that would otherwise be unlawful under the Act and the Sex Discrimination (Northern Ireland) Order 1976. The interpretation of those pieces of legislation as they relate to elected representatives is a matter for the courts.

Mr. Lansley: I am grateful to the Minister for that explanation. If I understand him correctly, existing sex discrimination provisions will not apply to a system for selecting candidates that is introduced under clause 1 with the intention of reducing inequality, but will still catch a discriminatory system that increases inequality. In the absence of the amendments, the risk is that clause 1 will be held to mean that sex discrimination provisions do not apply to a party's arrangements for selecting candidates. How sure can the Minister be that that interpretation will not be placed on the Bill?

Dr. Whitehead: I can give an absolute assurance that that is not how the Bill will be interpreted. The Bill does not switch off the Sex Discrimination Act as it applies to non-discrimination during the process of selection; it simply switches off attacks under the Act on parties that undertake positive measures to ensure better representation for women. It is important for parties clearly to define the boundaries of those measures so that that distinction can be maintained. If they do, it will be clear that no other provisions of the Act are involved. The Bill gives parties the opportunity to act in a permissive, not a prescribed way to secure better, equal representation of women on shortlists and panels and in the parliamentary selection process.

Mrs. May: I am grateful to the Minister for his explanation. He said that it would be necessary for political parties to make a clear distinction when they take positive actions under the Bill. In what format will that distinction be made? Will it be made simply through the party's rules or will measures need to be registered externally?

Dr. Whitehead: A party that suggested such positive measures would be prudent to take legal advice on how to frame them to ensure that they worked under the Bill. That would give the party the necessary protection by ensuring that its measures were permitted under the Bill and were covered by the protection offered by the Act. If a party declared that it intended to switch off all the provisions of the Act and the proposals before us, there would be a legal problem. Parties must ensure that they do not do that. However, subject to that elementary act of prudence, it is clear that the Sex Discrimination Act is not switched off for all the other procedures, which seemed to be the main concern of the hon. Member for Maidenhead and persuaded her to table the amendments. Therefore, with those assurances and that clarification, I trust that the hon. Lady will feel able to withdraw the amendment.

11.30 am

Mrs. May: We have had a more wide-ranging and interesting debate than I thought the limited and narrow amendment would generate. People are clearly concerned about the issue, and the debate is necessary because we must get this matter right if we are to achieve the aim of increasing the number of women in Parliament.

I am continually disappointed by the hon. Member for Wirral, West, whose constant interventions are simply out of tone with the nature of the debate. There is a consensus—I am happy to use the word, although the hon. Member for North Cornwall suggested that Conservative Front-Bench Members might not want to use it; in fact, I used it in my introductory remarks--that we need to increase the number of women in Parliament. We are striving to ensure that there is a legislative framework within which political parties can choose how to proceed. They will choose how to apply the legislation and what positive action to take, and they will be judged on their choice. I hope that we shall hear some more positive interventions from the hon. Member for Wirral, West.

I have listened carefully to the Minister's response, which has given some comfort on this issue. As my hon. Friend the Member for Fareham (Mr. Hoban) said, those who have been interviewing in professions and business know all the aspects of equal opportunities legislation and the questions that they can and cannot ask. Unfortunately, that is more difficult for members of selection committees who have not interviewed for many years. I know from my experience before the 1997 election that those selection committees whose members were involved in the world of work or close to it and were therefore aware of the legislation and what questions could be asked were more likely to be positive about a woman than a selection committee whose members had been away from the world of work for some years.

As I said when introducing the amendment, we do not want to improve the lot of women in one way--in being selected and getting into the House--only to find that we have made matters worse in other ways. I am grateful to the Minister for his comments and for putting on record that, notwithstanding the reference in the clause that nothing in these parts

    ``shall . . . render unlawful anything done in accordance with such arrangements'',

the Bill does not intend that the other parts of the Sex Discrimination Act should not apply to the selection of candidates for various elections. Therefore, it will still be possible for political parties to make it clear to those involved in selection, guidance and training that there are questions that it is inappropriate to ask women. In due course, I hope that questions and remarks of the sort quoted by the hon. Member for Norwich, North, which raised a smile in the Committee, will become a thing of the past.

Given the Minister's remarks, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. May: I beg to move amendment No. 1 in page 1, line 14, after `women', insert `selected or'.

I confess that the amendment may seem small and limited. However, it would ensure that the arrangements to which the Bill applies

    ``are adopted not simply for the purpose of reducing inequality in the numbers of men and women elected'',

but in the numbers of men and women selected. Again, it is a probing amendment--I want to probe an important aspect of the Bill about which the Minister responded on Second Reading.

During my four and a half years in the House, I have managed to avoid any intricate debates on the application of European Union legislation to laws passed by the House.

Mr. Lansley: How did you manage that?

Mrs. May: Yes, precisely; it was very wise, but unfortunately I am now about to explore that area.

The Minister will be aware of the differing legal opinions on this matter. The background to the amendment is the question whether the European legislation applies to appointment to a job or to selection—the chance to stand for the possibility of a job. We all know that, prior to the 1997 general election, the Labour party used all-women shortlists. The practice was challenged at an industrial tribunal, in the Jepson case. The Labour party's main argument was that selection as a parliamentary candidate did not constitute employment, and was not, therefore, covered by part II of the Sex Discrimination Act 1975. The industrial tribunal judgment, delivered on 19 January 1996, rejected that argument, stating that the job of a Member of Parliament was a profession and was covered by the relevant part of the Act. Selection as a candidate constituted a necessary qualification for being a Member of Parliament.

On Second Reading, both the Minister and the Secretary of State responded to a point made by my hon. Friend the Member for South Cambridgeshire about the application of European legislation, by saying that they were happy that it would not present a problem. They were confident that the Bill was permitted and did not contravene European Union legislation. In winding up, the Minister referred to the challenge from my hon. Friend. He said:

    ``He referred to the Abrahamsson case but—and he will be aware of the significance of this—that case was brought in relation to the appointment of a candidate for an academic post. There is an appointment distinction''—

I think that that probably should read ``important distinction''—

    ``which I have already made, between the appointments to paid posts and the selection of candidates who stand for election. That is why we are confident that the equal treatment directive will not apply.''—[Official Report, 24 October 2001; Vol. 373, c. 381.]

I want to explore, through the amendment, that point about the difference between appointment to a post and selection .

Article 141(4) of the treaty of Rome, establishing the European Community, as amended by the treaty of Amsterdam, states:

    ``With a view to ensuring full equality in practice between men and women in working life, the principle of equal treatment shall not prevent any Member State from maintaining or adopting measures providing for specific advantages in order to make it easier for the under-represented sex to pursue a vocational activity or to prevent or compensate for disadvantages in professional careers.''

The issue, about which lawyers have argued and will, I suspect, argue for some time, is whether that provides sufficient scope for a candidate's selection and subsequent election to Parliament, or to any other relevant elected body.

The problem is that several cases have tested the extent to which positive action or positive discrimination can be used.

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